Supreme Court Limits Public-Employee Grievance Rights
The U.S. Supreme Court on Monday made it more difficult for public employees to gain First Amendment protections for their workplace grievances.
The court ruled unanimously, in most respects, that a government employer's alleged retaliation against a worker does not create liability under the First Amendment's petition clause unless the employee's petition is about a matter of public concern.
Writing for the court, Justice Anthony M. Kennedy said that the line of cases limiting the workplace speech rights of public employees to matters of public concern applies equally to complaints that are cast as petitions.
"Petitions, no less than speech, can interfere with the efficient and effective operation of government," Justice Kennedy said in Borough of Duryea v. Guarnieri (Case No. 09-1476).
He cited a friend-of-the-court brief filed by the National School Boards Association that expressed concern that every employee grievance, on matters such as working conditions, pay, discipline, promotions, leave, vacations, and terminations, could become a federal case under the broader view of the petition clause that the court was rejecting.
"Unrestrained application of the petition clause in the context of government employment would subject a wide range of government operations to invasive judicial superintendence," Justice Kennedy said.
The high court has generally curtailed First Amendment protections in recent years for the speech of public employees, including teachers, particularly speech on matters of private concern or job-related communications.
The Duryea case raised the question of whether the petition clause, which says Congress shall not abridge the right of the people "to petition the government for a redress of grievances," provides a different standard or stronger protection for public-employee workplace grievances.
The case was brought by Charles J. Guarnieri, the police chief of Duryea, Pa., who clashed with the borough council and was dismissed. He won his job back in a grievance procedure, but the council then sought to impose directives on him affecting his pay and his working conditions. Guarnieri sued under the petition clause, and a jury ruled that the borough council had retaliated against him for winning the earlier grievance.
The U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, largely upheld the trial court victory for the police chief. The appeals court rejected the view that petition-clause cases concerning only private matters, not matters of public concern, were not valid.
Underlying the case was the Supreme Court's jurisprudence on public-employee free speech. The 1968 case of Pickering v. Board of Education, for example, held that a teacher could not be dismissed for speaking out publicly on a matter of public concern. In Connick v. Myers, a 1983 case that said a survey about working conditions circulated among employees in a district attorney's office was not protected because it was a matter of personal interest, not public concern.
Justice Kennedy said the "public concern" test in government-employee speech cases was developed to protect the government's interest in managing its own workplaces.
"Adoption of a different rule for petition clause claims would provide a ready means for public employees to circumvent the test's protections," he said.
Still, Justice Kennedy stressed that the petition clause had important historical roots and that petitions by government employees that were about matters of public concern deserved protection.
"Public employees are the members of a community most likely to have informed and definite opinions about a wide range of matters related, directly or indirectly, to their employment," Justice Kennedy said.
Justice Clarence Thomas filed an opinion concurring in the judgment that set aside the 3rd Circuit court's ruling, but he expressed doubt that lawsuits are petitions under the "original meaning" of the petition clause.
Justice Antonin Scalia also filed an opinion disagreeing with some of Justice Kennedy's reasoning. He also raised doubts about lawsuits as petitions, and he questioned the idea of applying the "public concern" test to petitions.
"Rather than shoehorning the 'public concern' doctrine into a clause where it does not fit, we should hold that the petition clause protects public employees against retaliation for filing petitions unless those petitions are addressed to the government in its capacity as the petitioners' employer, rather than its capacity as their sovereign," Scalia said.
On that basis, Scalia would have upheld one of the police chief's retaliation claims.